Are haters hiding behind free speech?

by Rabbi Aron Hier and July Hodara

Posted on Mar. 8, 2012 at 10:49 am

Imagine a college student being subjected to verbal abuse, being spat at, and being the focus of harassment because of their gender, religion, national origin, race or simply because of their political beliefs?

Recently, college students on many campuses across the country were once again subject to such harassment and intimidation due to a hatefest known as “Israel Apartheid Week” that has become an international, annual event. Anyone walking through the heart of campus was confronted by a barrier of offensive signs, such as depictions of Jews as bloodthirsty barbarians intent on harming innocent Palestinian women and children, or photos of 13-year old Anne Frank wearing a kefiah (the headscarf worn by Yasser Arafat); one might even have encountered event organizers laughing about the Holocaust. Needless to say, such sentiments have been the basis for anti-Semitic attacks and pogroms for generations.

University administrators facing this issue, to date, have been unable to intervene, because such acts of hatred may be protected by free speech. One young Jewish woman, Jessica Felber, a former student at UC Berkeley, who chose to challenge the status quo, filed a Civil Rights lawsuit against UC Berkeley in federal court alleging that, due to her political views, “…certain individuals and organizations have repeatedly exceeded the boundaries of free speech, engaging in conduct that amounts to harassment, intimidation, threats…both on Sproul Plaza and elsewhere on the Berkeley campus…”

This past December, the presiding judge, U.S. District Court Judge Richard Seeborg, from the northern district of California, while addressing one of the issues of the lawsuit wrote, “As offensive as spitting at someone may be, it very well could constitute protected, expressive conduct, depending on the precise circumstances…” What are Judge Seeborg’s “precise circumstances” in which spitting at someone is acceptable? And even if it is a legally protected act, is this the atmosphere that we want to nurture on our college campuses?

Under the constitution, a university is legally obligated to protect free speech. That is a given, especially significant at a university such as Ms. Felber’s alma mater, UC Berkeley, where the free speech movement was born in 1964. At that time, on the very same steps of Sproul Hall, students led by Mario Savio and others sought the right to express their political activism. Ultimately they persuaded the university to change its rules, and the steps of Sproul Hall have been the scene of free political expression ever since.

The spirit of those times fomented a breakthrough in how Americans are able to freely express themselves. Where is that same spirit today when it comes to challenging hate? The shift in policy was never intended to provide a breeding ground for the harassment of students because of their identity. Jessica Felber claims that, under Title VI of the Civil Rights Act of 1964, the university should have protected her from such a hostile environment. As a result of the Simon Wiesenthal Center’s discussions with UC President Mark Yudof, we know that he is well aware of the complexities of this issue – the conflict between free speech versus hatred run rampant.

What is society prepared to do about the evolving ethos that permits hateful forms of expression to hide behind free speech rights?

Rabbi Aron Hier is Director of Campus Outreach for the Simon Wiesenthal Center, Los Angeles. July Hodara is a graduate of UC Berkeley and an intern for Campus Outreach.

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